DiNapoli: State health department should improve enforcement of nursing home violations

Submitted

Mon, Feb 22nd 2016 02:25 pm

Fines
delayed for up to six years, nursing homes cited repeatedly for problems with
limited consequences

The state Department of Health needs to fix problems
and delays with how it is assessing fines to nursing homes after violations are
found, according to an audit
released today by state Comptroller Thomas P. DiNapoli. While DOH is frequently
inspecting nursing homes and acting quickly on serious complaints, auditors
found some facilities had repeated violations that escalated into more serious
problems with limited consequences.

This audit is part of a series examining issues
impacting New York's senior citizens. In December, DiNapoli released an audit
that called for more oversight of providers of adult day care services.

"The state health department needs to strengthen its
enforcement policies to better protect the health and well-being of nursing
home residents across the state," DiNapoli said. "DOH is not using the full
array of enforcement actions available, and this trend has recently worsened,
taking the teeth out of a significant deterrent to unsafe practices and
conditions.

"DOH officials deserve credit for their timely
inspection of nursing homes, but more must be done. Families need to know their
loved ones have safe accommodations and providers are being held accountable
when problems are found."

DOH oversees nursing home facilities in New York and
acts as an agent for the federal government's Centers for Medicare and Medicaid
Services in monitoring quality of care in nursing homes. DOH is responsible for
ensuring nursing homes comply with federal and state regulations, which
establish standards governing their operations.

DiNapoli's auditors, looking at the period of Jan.
1, 2012, through Sept. 17, 2015, found DOH met quality measures for conducting
surveys in accordance with federal regulations, including assessment of the
scope and severity of citations. Between calendar years 2007 and 2014, DOH
generally inspected all nursing homes within the required 15.9-month cycle and
had a statewide average of 11.8 months between surveys.

The same diligence was not being applied to the
collection of fines, however. Auditors discovered DOH does not use the full
array of enforcement actions available to it, choosing to not levy fines for
categories of violations that account for almost 85 percent of the problems
found. DOH only imposes fines if it finds a problem has already resulted in
actual harm to an individual or is currently placing people in immediate
jeopardy - less than 4 percent of all violations.

Even when fines are imposed, problems with DOH's
enforcement procedures have resulted in delays of up to six years between when
a violation is cited and a fine is imposed. Auditors analyzed data from
calendar year 2014, and found the average time between when deficiencies are
first identified and the issuance of fines was nearly four years. This compares
to just six months for fines issued in 2007. Further, between January 2014 and
July 2015, DOH collected only 12 fines totaling $152,000. This compares to $628,000
in fines levied in 2011.

DiNapoli's auditors also noted that, prior to 2008,
the maximum fine allowed for a violation was just $2,000 per incident - even
for those that result in serious physical harm or death. The law was amended to
allow DOH to assess a $5,000 fine for some repeat violations and a $10,000 fine
if a violation results in serious physical harm to a resident, but that change
is slated to expire in April 2017. Unless lawmakers take action, the maximum
fine for any violation will revert to $2,000 - less than the equivalent of one
week's revenue derived from one nursing home bed.

Sen. Kemp Hannon, chair of the Senate Health
Committee, said, "The department should be moving to collect fines that have
been assessed as quickly as possible."

Assemblyman Richard Gottfried, chair of the Assembly
Health Committee, said, "New York really needs to step up nursing home
enforcement. We have excessive use of psychotropic drugs, high levels of
serious bedsores, and inadequate staffing. Our frail elderly deserve better."

Richard J. Mollot, executive director, Long Term
Care Community Coalition, said, "We are truly grateful to state Comptroller
DiNapoli for shedding light on this serious problem. Far too many of our
nursing home residents suffer needlessly due to substandard care and neglect.
And, far too often, New York taxpayers pay for services that are subpar or
worthless. We join the state comptroller in urging the state Department of
Health to take the swift and meaningful action needed to improve
accountability."

DiNapoli's auditors also found:

•DOH has only one part-time employee assigned to
process enforcement referrals and prepare enforcement packets;

•The agency routinely waits at least six months
before processing enforcements in the event fine assessments are amended or
withdrawn as a result of appeals. However, it does so at the expense of timely
management of other enforcement activities; and

•DOH uses a database that, by its staff's own
admission, is fragmented and incomplete.

DiNapoli recommended DOH:

•Eliminate the backlog in enforcement activity and
maintain timely processing of future assessments of fines;

•Take steps to initiate the assessment of fines
earlier to better align survey results with the assessed penalty;

•Develop a single, more comprehensive system to
track and monitor all enforcement actions; and

•Consider assessing fines for citations covering
lower-level infractions, especially for those facilities that demonstrate a pattern
of repetitive citations.